1. Dealing with complaints of Bullying and Harassment
Darren Newman

2. Three separate concepts
Harassment – based on protected characteristic. Actionable under the Equality Act
Harassment – not based on discriminatory grounds. Actionable under the Protection from Harassment Act 1997
Bullying – not a legal term. May involve behaviours leading to personal injury, or contract based claims

3. Protection from Harassment Act 1997
Designed as a stalking bill – nothing to do with discrimination
Offence to pursue a course of conduct which ‘amounts to harassment of another’ – S.1(1)
Harassing someone includes ‘alarming the person or causing the person distress’ – S.7
Course of conduct means at least two occasions – S.7
Gives a civil as well as criminal duty

4. Bullying persistent unwelcome behaviour unwarranted or
invalid criticism
being singled out
mobbing
nit-picking
fault-finding
Bullying
isolation
exclusion
distorted or fabricated allegations of underperformance
being shouted at
treated differently
excessive monitoring

5. Bullying or management?
Loss of temper
Inappropriate language
Personal abuse rather than professional criticism
Humiliation in front of others
Inconsistent treatment
Disproportionate responses

6. Discrimination and harassment
Freestanding claim under discrimination legislation
Must be based on one of the discrimination strands
Compensation for loss and injury to feelings
Also be aware of right not to be victimised – applies where employee has raised or been involved in any discrimination complaint

7. What is Harassment? – S.26 Equality Act
Unwanted conduct
Related to a protected characteristic
Which has the purpose or effect of:
Violating a person’s dignity or
Creating an intimidating, hostile, degrading, humiliating or offensive environment

8. Sexual Harassment Harassment is also
Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of
violating an employee’s dignity or
creating an intimidating, hostile, degrading, humiliating or offensive environment
Any less favourable treatment arising from employee’s rejection of or submission to the conduct

9. What conduct is unwanted?
Often entirely clear
Unwanted means unwelcome or uninvited – Reed & anor v Stedman [1999] IRLR 299
Sometimes the victim will need to make it clear that the conduct is unwanted
Tribunals will be sympathetic to the position of subordinates who feel they can’t complain
Managers need to set example of appropriate behaviour

10. A reasonableness threshold
What conduct is sufficiently serious to amount to a violation of dignity / offensive environment?
Can ‘banter’ ever be an acceptable defence?
The test is not entirely subjective – there is a threshold of reasonableness
Tribunal must have regard to
the perception of the victim
the other circumstances of the case and
‘whether it is reasonable for the conduct to have that effect’

11. Liability for Harassment
Employers are vicariously liable for acts of employees where acts are done ‘in the course of employment’
Defence to show that employer did everything reasonable to prevent the harassment in question
Just having a policy will not do!

12. Handling complaints
In dealing with complaints you have to consider the rights of the accused as well as the accuser
Suspension should not be a knee-jerk reaction – possible breach of contract
If complaint is made in good faith – hard to prove otherwise – very important not to victimise complainant

13. Martin v Devonshires Solicitors EAT December 2010
Employee makes false allegations of discrimination as result of paranoid delusions
Dismissed because employer fears further allegations and disruption
Accepted that allegations made in good faith
Even false allegations are protected - but
EAT holds no victimisation – features to the complaint that were properly separable from the complaint itself

14. Westwood v West North West Homes Leeds Ltd (EAT, 5/6/13)
Employee believes he is the victim of race discrimination
Brings 10 separate ET claims and grievances
Grievances all rejected
Employer dismisses citing employees loss of trust and confidence
Held: unlawful victimisation – allegations were made in good faith even if without foundation

15. Mediation Can be useful for interpersonal disputes
Not suitable when allegation is clear gross misconduct
Has to be a voluntary process
Legal status of what happens during mediation session yet to be tested

16. ‘Without prejudice’ discussions
Not a magic phrase
Means that negotiations aimed at resolving a dispute will not be admissible in evidence
“pre-termination discussions” also excluded from evidence in unfair dismissal cases – does not apply in discrimination cases

17. Grievance and disciplinary proceedings
Employer’s often deal with harassment and bullying though grievance procedures
But what do you do if the grievance is upheld?
How can you carry out an open minded disciplinary process, if grievance process has already decided an employee is guilty?

18. Anonymous and informal allegations
What do you do if an employee tells you something ‘off the record’?
You can’t unknow a fact – may have to investigate anyway
However, what the victim wants to happen can be a valid thing to take into account – make a careful record
Make sure employee is told that they will be supported and protected if they make a formal complaint
Key consideration – risk to other employees

19. Key areas for review
Is there a mechanism allowing complaints to be raised at an early stage?
Is there a common understanding of what constitutes appropriate behaviour?
Do disciplinary and grievance procedures operate effectively?